Comparative analysis of third-party permanency orders legislation in Australia

Abstract

While permanency planning has long been a feature of child protection policy and practice in Australia (Tilbury & Osmond, 2006), the concept has gained greater prominence in recent years through nationally coordinated efforts and legislative changes. Permanency planning is defined by the Australian Institute of Health and Welfare (AIHW) as the ‘processes used by state and territory departments responsible for child protection to achieve a stable long-term care arrangement (which can be broadly grouped as reunification, third-party parental responsibility orders, long-term finalised guardianship/custody/care, and adoption)’ (2021b, p. 90). A central priority of the last National Framework for Protecting Australia's Children Fourth Action Plan (2018–2020) was ‘support[ing] better permanency options including…to reduce state guardianship for children who cannot be safely reunified with their families within a reasonable timeframe’ (Department of Social Services [DSS], 2019, p. 24).¹ Over the last 5–10 years, states and territories have modified their child protection legislation to incorporate a range of legal orders, permanency hierarchies, and timeframes for decision-making about permanency options. These changes also appear in policy guidance.

‘Permanency’ is a term used in out-of-home care services to convey different ways of belonging, through emotionally connected and stable relationships, a secure home and a right to one's culture (Wright & Collings, 2021). Multiple dimensions of permanency are highlighted in the literature (Sanchez, 2004). Relational permanency is conceptualised as the emotional connection between the child and their caregiver, including dimensions of caregiver commitment, child's sense of belonging and caregiver's support for on-going relationships with birth family (Pérez, 2017). Others hold a broader view of relational permanency as encompassing the child's set of enduring, lifelong relationships with family members and other caring adults, including ‘at least one adult who will provide a permanent, parentlike connection for that youth’ (Jones & Laliberte, 2013, p. 509). Physical permanency (also described as ecological permanency) is associated with a stable residence where the child has an on-going home, with consistency in their other ecological contexts (e.g. schools, neighbourhood and religious communities) and the norms that govern daily living (Stott & Gustavsson, 2010). Legal permanency highlights legal recognition of the relationship between the child and their caregiver/s, with associated parental responsibilities, signifying that the ‘state’ is no longer the child's legal guardian. This legal relationship may be achieved through reunification with a parent; third-party permanency orders vesting parental authority to age 18 with kin or foster carers; or a new legal relationship with a carer, through guardianship or adoption (Freundlich et al., 2006). Cultural permanency is a concept that emerged from the work of First Nations scholars in North America, who drew attention to the identity conflicts faced by Indigenous adoptees in non-Indigenous families (Sinclair, 2007) and the importance of children in out-of-home care learning language and cultural traditions from the elders of their families and communities (Bennett, 2015). The cultural dimension of permanency recognises cultural connection as a protective factor, critical to children's best interests and emotional development (Bamblett, 2006). It affirms children's cultural rights to practice their language, beliefs, values, symbols and norms (Blackstock et al., 2020), fostering cultural identity. While these four dimensions of permanency have been recognised in Australian legislation, the primary policy and practice focus has been legal permanency.

In accordance with this wave of legislative changes emphasising legal permanency, an increasing number of children in out-of-home care are being placed on legal orders called third-party permanency orders. These orders, which may be short or long-term, transfer the ‘duties, powers, responsibilities and authority to which parents are entitled by law to a nominated person(s) whom the court considers appropriate’ (AIHW, 2021b, p. 87). Depending on the jurisdiction, third-party legal orders may also be called guardianship or permanent care orders. Under these orders, the child’s parents are still recognised as such under the law but no longer retain custody or guardianship of their child. By contrast, adoption severs the legal relationship between a child and their parents, creating a new one with their adoptive family. Adoption goes further by altering legal relationships to family (including siblings) beyond the age of 18, including succession and other rights, and re-issuing birth certificates to include the adoptive parents. The majority of known child adoptions from out-of-home care have been made in New South Wales (NSW); for example, in 2020–2021, 67 of 100 such adoptions occurred in that state (AIHW, 2021a).

Third-party permanency orders are far more common across jurisdictions than adoption. At 30 June 2021, 46,200 children were in out-of-home care and 9900 were on third-party permanency orders. Nationally, Aboriginal and Torres Strait Islander children were in out-of-home care (58 per 1000) at a rate 10× that of non-Indigenous children (5 per 1000). Aboriginal and Torres Strait Islander children were also significantly more likely than non-Indigenous children to be on a third-party order: almost 8× more likely in NSW (10.1 compared to 1.3 per 1000) and Victoria (16.5 compared to 2.2 per 1000) and 6× more likely in Queensland (6.2 compared to 1.0 per 1000) (supplementary table T3, AIHW, 2022). The majority of children in care (74.6%) came from the most populous states of New South Wales (NSW), Queensland and Victoria, and these states also accounted for 85% of all children on third-party orders in 2021–22 (AIHW, 2022).

Despite increasing use of third-party permanency orders across Australia, little is known about the consequences of these legal orders for children. Under new, nationally consistent counting rules, children on third-party orders are no longer counted as being in out-of-home care (AIHW, 2022), despite being deprived of their home environment through statutory child protection intervention. There is little or no data on these children once they exit the formal system. Specifically, while third-party permanency orders confer legal responsibilities upon carers, there is minimal research investigating the extent to which this results in long-term relationships of care, continuity, and cultural connection for the child (Rolock et al., 2018).

Permanency legislative changes occur in the shadow of past practice. The clearly devastating consequences of forced adoptions and Stolen Generations underscore the critical need to understand the implications of third-party orders for children and to recognise the disproportionate impacts on Aboriginal and Torres Strait Islander children and families. Adopted people impacted by coercive attitudes and practices known as forced adoptions have reported psychological distress and identity problems (Kenny et al., 2013). Stolen Generations policies under the guise of concerns for children's well-being resulted in individual and collective trauma and lost ties to family and culture (Human Rights and Equal Opportunity Commission, 1997; Newton, 2019; Turnbull-Roberts et al., 2022). The Family Matters campaign has criticised the narrow legislative focus on legal permanency over relational permanency and cultural rights (SNAICC, 2021). The Family is Culture report also highlighted the lack of awareness in the NSW permanency legislation about the context of cultural differences and Aboriginal kinship systems (Davis, 2019). Specifically, the more fluid and complex nature of Aboriginal kinship systems disperse collective responsibility for child-care among households and kin, providing Aboriginal children “permanency and stability when being cared for ‘by a number of relatives and kin at different times’” (Davis, 2019, p. 16). Scholars have questioned the capacity of third-party permanency orders to provide connection to family, community and culture essential to the well-being of Indigenous children (Krakouer et al., 2018). The Australian Institute of Health and Welfare reports on the percentage of Aboriginal and Torres Strait Islander children placed with non-Indigenous carers in out-of-home care (AIHW, 2021c) but does not report these percentages for children on third-party permanency orders.

This article provides a comparative analysis of child protection legislation regarding third-party legal orders in NSW, Queensland and Victoria, focusing on the provisions related to access to supports, contact with birth relatives and placement with relative/kin or foster carers. It explores considerations about how these provisions may impact children's lives and raises questions for future research.

In the last few years, major legislative changes in NSW, Queensland and Victoria have changed provisions regarding legal permanency for children in out-of-home care. Family preservation or reunification (called ‘restoration’ in NSW) is stated as the preferred option, followed by third-party permanency orders to kin or other carers until the child is 18 years of age and open adoption. Governments frame these provisions in the context of the child's best interests and intention to normalise the child's experience and the carer's role. On the other hand, scholars and advocates argue that third-party permanency orders and adoption also serve to reduce and alleviate the government's expenditure and responsibility for children in the out-of-home care system (Davis, 2019; Thoburn et al., 2012).

Across all three jurisdictions, open adoption following statutory child protection intervention is considered the least favourable preference for Aboriginal and Torres Strait Islander children, given the importance of preserving key ties to family, community and culture (SNAICC, 2016). While there is recognition of Kupai Omasker – customary adoptions within Torres Strait Islander child rearing practices – in Queensland, this is distinct from Western legal adoption following statutory intervention (Titterton, 2017).

In NSW, amendments to the Children and Young Persons Care and Protection Act 1998 in 2014 and 2018 introduced a hierarchy of permanency goals over long-term foster care in s 10A of the Act, to prioritise, in order: restoration (also called ‘reunification’), guardianship with a relative, or guardianship or open adoption with a foster carer. These amendments also introduced timeframes for reunification before children are transitioned to permanent legal orders, with shorter timeframes for very young children. New processes were established for making legal orders, including restricting the length of legal orders for parental responsibility to the minister when the child has a case plan goal of restoration, guardianship or open adoption.

In Queensland, the Child Protection Act 1999 was amended in 2018 to enact a new permanency framework with timeframes for decision-making, a requirement to consider relational, physical and legal elements of permanency, concurrent case planning, limitations on the use of consecutive short-term protection orders and the introduction of a permanent care order. There were additional provisions relating to Aboriginal and Torres Strait Islander children, enacting all five elements of the Aboriginal and Torres Strait Islander Child Placement Principle (ATSICPP) (SNAICC, 2018) and enabling delegated authority to Aboriginal and Torres Strait Islander community organisations.

In Victoria, the Children, Youth and Families Act 2005 was amended in 2014 to introduce new protection orders, changes to child protection case planning requirements and restrictions on the length of orders under which reunification can be pursued (Wise et al., 2022). Section 323 of the Children Youth and Families Act 2005 places restrictions on making permanent care orders for Aboriginal children, specifying the disposition report to the court must include the following: a report from an Aboriginal agency recommending the permanent care order, no suitable placement can be found with an Aboriginal person, a cultural plan is prepared and the child is consulted if appropriate. The secretary with oversight of child protection must also be satisfied that the permanent care order adheres to the ATSICPP.

While sharing the same basic goals of promoting certainty of parental responsibility through legal orders and avoiding harmful ‘drift’ in out-of-home care, provisions regarding third-party permanency orders differ by state. This section examines key areas of difference and similarity among legislative provisions in NSW, Queensland and Victoria and discusses potential consequences.

Legislative provisions on third-party permanency orders raise a number of concerns about the safety and wellbeing of children, as well as their enjoyment of rights to family, community and culture. There is no requirement and no strategies to monitor whether contact visits between children and their family members, including siblings, take place, or to offer mediation in case of relationship breakdown. Likewise, these permanent carers are responsible for carrying out cultural plans for the children in their care, with little accountability or support. By assuming legal responsibility, carers of children on third-party orders relinquish access to specialist supports that may be needed if issues arise over the course of development, such as in adolescence when identity issues come to the fore and increased behavioural problems associated with children's earlier adverse experiences may emerge.

The strong move towards third-party permanency orders is not matched by the current evidence base. There is no research on the short or longer term outcomes for children and young people, and little monitoring and data available in the different states in Australia to indicate how stable and emotionally secure these third-party permanency placements are for children and what challenges their carers are facing. Overseas research on the outcomes of permanent legal orders is not directly transferrable, given the unique cultures, history, and policy and service context in Australia and the variations in the conditions and support provisions of the orders. Research in the United State and the United Kingdom does, however, point to not only some overall positive outcomes but also three main areas of concern. These concerns with implications for policy and practice relate to long-term placement stability and re-entry to care, lack of access to support and services, including support through the court process, and difficulties managing birth family contact.

Overall, the vast majority of guardianship carers in several studies in England and the United States reported positively about the adjustment of the children under guardianship orders in their care.² A significant minority, however, were struggling and the guardianship arrangements had disrupted for between 2% and 6% over 5 years in England (Harwin et al., 2019; Wade et al., 2014) and within 10 years or so or before they were 18 for between 10% and 18% of children in adoption and guardianship in the US (Rolock & White, 2016; Wulczyn et al., 2020). Older children (aged 12 and older), children with behavioural problems, and those who had more moves while they were in foster care, before guardianship or adoption, were more likely to re-enter care; those who were placed with siblings, and in Rolock and White's (2016) study, had spent at least 3 years in foster care prior to guardianship were less likely to do so. Wulczyn et al. (2020) confirmed the findings from other studies in the United States, including Rolock's, that the risk of re-entry following guardianship increases ‘as children become teenagers … even after controlling for how long the young person has been out of care’ (p. 11).

Caregivers' concerns about financial difficulties, housing and the lack of support and services were a key consistent finding in both England and the United States (Harwin et al., 2019; Testa et al., 2015; Wade et al., 2014; White et al., 2021). In England, following a tight assessment period to meet the 26 week time limit, contact and support from social workers dropped off quickly in and after the court process; by the end of the 3–6 year follow-up period, few guardians had any contact with a social worker but found family and other community services helpful (Wade et al., 2014). Similarly, a large-scale survey in the United States by White et al. (2021) found that a significant minority (10%–18%) of adoptive and guardianship caregivers reported substantial strain and difficulties managing children's educational needs and behavioural problems, particularly for older children, without support and relevant services. Given the similarities in the drop-off in financial and other supports and services, it is very likely that third party guardians in Australia have a similar experience but there has been no research to date to examine this. Many relatives who become the guardians of children on third party guardianship orders were kinship carers and are often older, less well-resourced and less supported than foster carers.

Finally, managing contact with the child's birth parents presents a challenge for carers, either as kinship or foster carers or as third party guardians. As Wade et al. (2014) point out in relation to Special Guardianship orders in England,³ the continuing contact such orders afford children with their birth parents and wider family is a strength, but can also be a difficulty or challenge. Guardians are expected to maintain the child's connection with their family and to manage the tensions and conflicts of these family relationships, but they are provided with little support to do so. While they may appreciate the lack of oversight and the ‘normality’ of caring for their grandchildren and relatives, the lack of support can make their job much harder.

Given that children transitioning to third-party orders results in cost savings to government, these savings should be reinvested into supports. As Wade et al. (2014) point out, ‘the potential financial savings’ to departments and agencies ‘are considerable, given that these children might otherwise spend years in the care system. Resources should therefore be available to provide proper preparation and post-order services to help families manage successfully’ (p. 243), including access to educational support and leaving care services for the children and young people in their care. The situation is similar in Australia but there is no local evidence about the short and long-term outcomes for children.

While third-party permanency orders are now widely used across Australia, affecting nearly 10,000 children at last count, the legal implications of these third-party orders varies across jurisdictions (AIHW, 2022). This article has identified specific areas of similarity and difference regarding legislative provisions in the three states with the largest number of children in out-of-home care and on third-party permanency orders (New South Wales, Queensland and Victoria) for access to support, on-going contact with birth family and placement with kin or foster carers. Importantly, third-party legal orders remove access to support and oversight of contact arrangements, raising the question about whether issues arise later that compromise these arrangements and put stress on the child and carer and thus the placement. Legislative and policy changes such as third-party parental responsibility orders that have such a dramatic impact on children's lives and those of their family members should be underpinned by evidence on outcomes and rigorous discussion. Multi-state research is essential to develop an understanding of the views, experiences, and longer term outcomes for the children and young people, their birth families, and caregivers at the centre of permanency policies.

Amy Conley Wright: Conceptualization; formal analysis; project administration; writing – original draft; writing – review and editing. Judith Cashmore: Conceptualization; writing – original draft; writing – review and editing. Sarah Wise: Conceptualization; writing – review and editing. Clare Tilbury: Conceptualization; writing – review and editing.